Matter of Matthew Lowy ( 2023 )

aGINAL 05/30/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: PR 22-0684
PR 22-0684
MAY 3 0 2C23
Bowen C n od
IN THE MATTER OF MATTHEW LOWY, Clerk of Court
State of Vlontana
An Attorney at Law, ORDER
Respondent
On November 30, 2022, the Office of Disciplinary Counsel (ODC) filed a formal
disciplinary complaint with the Commission on Practice (Commission) against Montana
attorney Matthew Lowy. The disciplinary complaint may be reviewed by any interested
person in the office of the Clerk of this Court.
The ODC alleged one count of misconduct against Lowy for failing to respond to a
request for response from ODC regarding a report ODC received from a District Court
judge who raised concerns about Lowy's representation of a client in a family law matter.
ODC further asserted that at the time it received the report, Lowy was on probation for
violations of the Montana Rules of Professional Conduct (MRPC) that occurred during his
representation of two other clients. ODC explained:
As part of his discipline, and among other requirements Respondent [Lowy]
was placed on probation and assigned an ODC mentor. . . . Respondent and
his mentor have dutifully participated in the mentorship and filed the
necessary reports. However, throughout the period of mentorship,
Respondent's mentor has expressed concern regarding Respondent's ability
to manage his law practice.
Regarding the current disciplinary complaint, ODC alleged that it received the
judge's report in January 2022. By letter dated March 31, 2022, it requested that Lowy
respond by April 21, 2022. Lowy acknowledged receipt of the letter and later requested,
and was granted, extensions of time to respond. However, he failed to file a response in
the ensuing months in spite of repeatedly assuring ODC that the response was imminent.
Ultimately, on August 11, 2022, ODC sent Lowy a letter via certified mail that required
him to file the response no later than August 22, 2022. Lowy signed for the letter, but
thereafter ceased communicating with ODC.
From these alleged facts, the ODC accused Lowy of violating M. R. Pro. Cond.
8.1(b) by failing to respond to its inquiries. It further alleged that Lowy could be subject
to discipline under Montana Rules for Lawyer Disciplinary Enforcement (MRLDE)
8(A)(6), for failing to promptly and fully respond to ODC' s inquiries.
On December 22, 2022, Lowy filed a response to the disciplinary cornplaint,
captioned "Answer and Unconditional Admission," with the Clerk of this Court. However;
the Commission concluded that, notwithstanding the caption, the document was unclear as
to whether Lowy intended to waive formal hearing. Since the Commission understood,
however, that Lowy intended to file a Conditional Admission and Affidavit of Consent to
comport with MRLDE 26, it set, a private Rule 26 hearing. However, Lowy did not timely
file a Conditional Admission and Affidavit of Consent in accordance with MRLDE 26 and
the Commission reset the hearing as a formal hearing on April 20, 2023. LOwy then
belatedly attempted to file a Conditional Admission and Affidavit of Consent with the
Commission on April 17, 2023. Although the Commission initially considered the
document "lodged only and not filed," and the matter remained set for formal hearing
hearing on April 20, 2023, the Commission ultimately decided to file the Conditional
Admission and Affidavit of Consent and convert the hearing to a Rule 26 hearing, with
Lowy's consent and waiver of the 20-day notice period.
In the tendered Conditional Admission and Affidavit of Consent, Lowy
acknowledged that the material facts of the complaint were true and that he had violated
the MPRC as alleged by ODC. In exchange for his tendered admissions, Lowy agreed to
discipline in the form of:
1. an indefinite suspension from the practice of law for a minimum of at least
one year;
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2. closure of his IOLTA/trust account as soon as practicable, but not later
than three months from the date of this Order of Discipline; and
3. assessment of costs pursuant to MRLDE 9(A)(8).
Lowy further agreed that, upon any reinstatement to the practice of law, he will be
subject to a five-year probationary period, commencing upon the date of the order of
reinstatement, with four conditions:
1. Lowy will comply with the MRPC, subject to further discipline for any
violations of the MRPC while on probation;
2. Lowy will obtain a mentor, subject to ODC' s approval, within 30 days of
his reinstatement date;
3. Lowy and his mentor will meet quarterly to discuss his adherence to the
MRPC and the actions and procedures Lowy has implemented to eliminate
the repeated failures that occurred in his practice, along with quarterly reports
to ODC; and
4. Lowy will not engage in the solo practice of law without the permission
of both ODC and his mentor.
At the April 20, 2023 hearing, Chief Disciplinary Counsel Pam Bucy advised the
Commission that ODC was in agreement with Lowy in the resolution of this matter. Bucy
further noted that Lowy never responded to the underlying report from the District Court
judge as required by ODC, and that ODC had received additional grievances against Lowy
in the interim. Bucy requested that Lowy's suspension begin as soon as he is able to
transfer any remaining clients.
Lowy advised the Commission that he had four remaining clients that he could
transfer within two weeks and complete his IOLTA accounting within 60 days.
On May 18, 2023, the Commission submitted to this Court its Findings of Fact,
Conclusions of Law, and Recommendation for Discipline in which it recommended that
this Court accept Lowy's conditional admissions for violating M. R. Pro. Cond. 8.1(b) for
repeatedly failing to respond to ODC' s requests for response, with additional grounds for
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discipline under MRLDE 8(A)(6) for failing to respond to ODC's inquiries, and impose
discipline in the form of:
1. indefinite suspension from the practice of law for a minimum of at least
one year;
2. prompt withdrawal from representation of any remaining clients and
closure of Lowy's IOLTA trust account within three months from the date of
this Order of discipline, and providing to ODC confirmation of closure, along
with the final month's IOLTA account statement, and not engaging in the
practice of law for any purpose other than filing motions to withdraw as
counsel for his current clients during this interval; and
3. payment of the costs of these proceedings incurred by ODC and the
Commission.
The Cornmission further determined that, if Lowy is later reinstated to the practice
of law, he shall be subject to a five-year period of probation, begimiing on the date of the
Order of Reinstatement, and that his probationary period will be subject to the conditions
set forth in Lowy's Conditional Admission and Affidavit of Consent and reiterated above.
This Court reviews de novo the Commission's findings of fact, conclusions of law,
and recommendations. In re Neuhardt, 2014 MT 88, ¶ 16, 374 Mont. 379, 321 P.3d 833(citation omitted). Having thoroughly reviewed the pertinent portions of the record, and
having considered the disciplinary criteria enurnerated in MRLDE 9(B), we have
determinedto accept the Commission's recommendation.
Based upon the foregoing,
IT IS HEREBY ORDERED:
1. The Commission's Recommendation that we accept Lowy's Rule 26 tendered
adrnission is ACCEPTED and ADOPTED.
2. Lowy is hereby indefinitely suspended from the practice of law for a minimum
of at least one year.
3. Lowy will promptly withdraw from representation of all remaining clients and
close his IOTLA trust account no later than three months from the date of this Order of
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Discipline. Lowy will provide to ODC confirmation of closure, along with the final
month's IOLTA account statement. Lowy shall not engage in the practice of law for any
purpose other than filing motions to withdraw as counsel for his current clients during this
interval.
4. Lowy shall pay the reasonable and necessary costs of these proceedings subject
to the provisions of MRLDE 9(C)(4), allowing objections to be filed to the statement of
costs.
5. If Lowy is reinstated to the practice of law, he shall be subject to a five-year
probationary period from the date of the order of reinstatement and additional conditions
as set forth in the Commission's May 18, 2023 Findings of Fact, Conclusions of Law, and
R.ecommendation for Discipline.
6. Pursuant to MRLDE 26(D), the Clerk of this Court is directed to file a copy of
Lowy's Conditional Admission and Affidavit of Consent.
The Clerk of this Court is directed to serve a copy of this Order of Discipline upon
counsel for Matthew Lowy, and to provide copies to Disciplinary Counsel, the Office
Administrator for the Commission on Practice, the Clerks of all the District Courts of the
State of Montana, each District Court Judge in the State of Montana, the Clerk of the
Federal District Court for the District of Montana, the Clerk of the Circuit Court of Appeals
of the Ninth Circuit, atvi.Irt_he Executive Director of the State Bar of Montana.
DATED this T(ay of May, 2023.
Chief Justice
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